February 9, 2001
Acqua Wellington North American Equities Fund, Ltd.
C/o Fortis Fund Services Ltd.
Xxxxxxxx Xxxxxxxx Centre
East Bay Street, P.O. Box SS-6238
Nassau, Bahamas
Dear Sirs:
This letter sets forth the agreement ("Agreement") of Acqua Wellington
North American Equities Fund, Ltd. (the "Purchaser") and IGEN International,
Inc. (the "Company") regarding the purchase by the Purchaser from the Company of
the Company's common stock (the "Common Stock") on the date hereof. The parties
agree as follows:
1. This Agreement relates to the purchase by the Purchaser of
211,900 shares of the Company's Common Stock ("Shares") for an
aggregate purchase price of $3,000,000, which purchase is being settled
by the parties on February 12, 2001.
2. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware. The Company has the
requisite corporate power and authority to enter into and perform this
Agreement and to issue and sell the Shares in accordance with the terms
hereof. The execution, delivery and performance of this Agreement by
the Company and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action. A copy of the duly executed resolutions of the Board of
Directors of the Company is attached hereto as Exhibit "B". This
Agreement has been duly executed and delivered on behalf of the Company
by a duly authorized officer. A copy of a duly executed incumbency
certificate of the Company's duly authorized officers is attached
hereto as Exhibit "C". This Agreement constitutes, or shall constitute
when executed and delivered, a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership
or similar laws relating to, or affecting generally the enforcement of
creditors' rights and remedies or by other equitable principles of
general application.
3. The Shares to be issued under this Agreement have been duly
authorized by all necessary corporate action and, when paid for and
issued in accordance with the terms hereof, the Shares shall be validly
issued and outstanding, fully paid and nonassessable, and the Purchaser
shall be entitled to all rights accorded to a holder of Common Stock of
the Company.
4. The Company represents and warrants that (a) the Shares have
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a registration statement on Form S-3,
Commission File Number 333-53086 (the "Registration Statement"); and
(b) the Company shall contemporaneously with the execution of this
purchase agreement file a prospectus supplement ("Prospectus
Supplement") to the Registration Statement in connection with this
transaction. Copies of the Registration Statement as filed and declared
effective by the Securities and Exchange Commission ("Commission"), and
the Prospectus Supplement in the form proposed to be filed are annexed
hereto as Exhibits "D" and "E", respectively.
5. The Company has taken or will take all action necessary on its
part to list the Shares for trading on the NASDAQ system or any
relevant market or system, if applicable.
6. The Company will continue to take all action necessary to
continue to be registered under Sections 12(b) or 12(g) of the
Securities Exchange Act of 1934 ("Exchange Act") and will continue the
listing or trading of its Common Stock on the NASDAQ National Market or
any relevant market or system, if applicable, and will comply in all
material respects with the Company's reporting, listing (including,
without limitation, the listing of the Shares purchased by the
Purchaser) or other obligations under the rules of the NASDAQ National
Market or any relevant market or system.
7. The Company has delivered or made available to the Purchaser
true and complete copies of the filings filed by the Company under the
Exchange Act with the Commission since September 30, 2000
(collectively, the "Commission Filings"). The Company has not provided
to the Purchaser any information which, according to applicable law,
rule or regulation, should have been disclosed publicly by the Company
but which has not been so disclosed, other than with respect to the
transactions contemplated by this Agreement. As of their respective
dates, each of the Commission Filings complied in all material respects
with the requirements of the Exchange Act and the rules and regulations
of the Commission promulgated thereunder and other federal, state and
local laws, rules and regulations applicable to such documents, and, as
of their respective dates, none of the Commission Filings referred to
above contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of
the Company included in the Commission Filings comply as to form in all
material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable
rules and regulations with respect thereto. No event or circumstance
has occurred or exists with respect to the Company or its subsidiaries
or their respective businesses, properties, prospects, operations or
financial condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Company but which has
not been so publicly announced or disclosed.
8. The Company will promptly notify the Purchaser of (a) any stop
order or other suspension of the effectiveness of the Registration
Statement and (b) the happening of any event as a result of which the
prospectus included in the Registration Statement includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein, or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
9. The Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the
Commonwealth of The Bahamas. The Purchaser has the requisite corporate
authority to enter into and to perform this Agreement and to purchase
the Shares in accordance with the terms hereof. The execution, delivery
and performance of this Agreement by Purchaser and the consummation of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action, and no further consent or authorization of
the Purchaser, its Board of Directors or stockholders is required. This
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Agreement constitutes, or shall constitute when executed and delivered,
a valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to,
or affecting generally the enforcement of creditors' rights and
remedies or by other equitable principles of general application.
Purchaser shall comply with all applicable federal securities laws,
rules and regulations in connection with the sale of the Shares
purchased by the Purchaser hereunder. The Purchaser shall confirm the
accuracy of the information regarding the Purchaser and the
distribution of the Shares as is disclosed in the Registration
Statement, the Prospectus or any Prospectus Supplement. The Purchaser
shall sell the Shares purchased hereunder in accordance with the Plan
of Distribution described in the Registration Statement or the
Prospectus or any applicable Prospectus Supplement.
10. The Company may not issue a press release or otherwise make a
public statement or announcement with respect to the completion of the
transaction contemplated hereby without the prior consent of the
Purchaser, which will not be unreasonably withheld, conditioned or
delayed. The parties agree that the form of press release attached
hereto as Exhibit F is approved for release by the Company.
11. Each party will indemnify the other party as provided in Exhibit
"A" attached hereto against liability with respect to the Registration
Statement (including, without limitation, the Prospectus Supplement)
relating to the Shares which are being sold by the Company to the
Purchaser hereunder. For purposes of said Exhibit A, capitalized terms
used therein without definition shall have the same meanings therein as
are ascribed to said terms in this Agreement.
12. This Agreement and the legal relations between the parties hereto
with respect to any purchase of Shares by the Purchaser hereunder shall
be governed and construed in accordance with the substantive laws of
the State of New York without giving effect to the conflicts of law
principles thereunder.
13. This Agreement contains the entire understanding of the parties
with respect to the matters covered hereby and, except as specifically
set forth herein, neither the Company nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such
matters.
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Delivery of an executed copy of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the original.
Please execute a copy of this letter which, when executed by the
Purchaser, will constitute an Agreement between the Company and the Purchaser.
Very truly yours,
IGEN INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief Executive Officer
AGREED TO:
PURCHASER:
ACQUA WELLINGTON NORTH
AMERICAN EQUITIES FUND, LTD.
By: /s/ Xxxxxxx X.X. Xxxxx Xxxxxx
----------------------------
Name: Xxxxxxx X.X. Xxxxx Xxxxxx
Title: Director
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Exhibit 'A'
Terms of Indemnification
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
harmless the Purchaser and each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act of
1933, as amended (the "Securities Act"), or Section 20(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and against any losses, claims, damages, liabilities, costs and
expenses (including, without limitation, reasonable costs of defense
and investigation and all attorneys' fees and expenses) to which the
Purchaser and each person, if any, who controls the Purchaser may
become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages, liabilities and expenses (or actions in
respect thereof) arise out of, or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained, or
incorporated by reference, in the Registration Statement relating to
Shares being sold to the Purchaser (including the prospectus dated
January 10, 2001, the prospectus supplement dated February 12, 2001
(the "Prospectus Supplement") which are or will become a part of the
Registration Statement), or any amendment or supplement to the
Registration Statement, or (ii) the omission or alleged omission to
state in that Registration Statement or any document incorporated by
reference in the Registration Statement, a material fact required to be
stated therein or necessary to make the statements therein not
misleading (an "Indemnifiable Matter").
The Company will reimburse the Purchaser and each such controlling
person promptly upon demand for any legal or other costs or expenses
reasonably incurred by the Purchaser or the controlling person in
investigating, defending against, or preparing to defend against any
claim relating to an Indemnifiable Matter, except that the Company will
not be liable to the extent such claim, suit or proceeding which
results in a loss, claim, damage, liability or expense arises out of,
or is based upon, an untrue statement, alleged untrue statement,
omission or alleged omission, included in any Prospectus Supplement or
any amendment or supplement to the Prospectus Supplement in reliance
upon, and in conformity with, written information furnished by the
Purchaser to the Company for inclusion in the Prospectus Supplement.
(b) INDEMNIFICATION BY THE PURCHASER. The Purchaser will indemnify and
hold harmless the Company, each of its directors and officers, and each
person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act from and
against any losses, claims, damages, liabilities and expenses
(including reasonable costs of defense and investigation and all
attorneys' fees) to which the Company and each director, officer and
person, if any, who controls the Company may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any
Prospectus or Prospectus Supplement or any amendment or supplement to
it or (ii) the omission or alleged omission to state in the
Registration Statement or any Prospectus or Prospectus Supplement or
any amendment or supplement to it a material fact required to be stated
therein or necessary to make the statements therein not misleading, to
the extent, but only to the extent, the untrue statement, alleged
untrue statement, omission or alleged omission was made in reliance
upon, and in conformity with, written information furnished by the
Purchaser to the Company for inclusion in the Registration Statement,
the Prospectus or Prospectus Supplement or any amendment or supplement
thereto, and the Purchaser will reimburse the Company and each such
director, officer or controlling person promptly upon demand for any
legal or other costs or expense reasonably incurred by the Company or
the other person in investigating, defending against, or preparing to
defend against any such claim, action, suit or proceeding.
(c) INDEMNIFICATION PROCEDURES. Promptly after a person receives notice
of a claim or the commencement of an action, suit or proceeding for
which the person intends to seek indemnification under Paragraph (a) or
(b), the person will notify the indemnifying party in writing of the
claim or commencement of the action, suit or proceeding, but failure to
notify the indemnifying party will not relieve the indemnifying party
from liability under Paragraph (a) or (b), except to the extent the
indemnifying party has been materially prejudiced by the failure to
give notice. The indemnifying party will be entitled to participate in
the defense of any claim, action, suit or proceeding as to which
indemnification is being sought, and the indemnifying party may (but
will not be required to) assume the defense against the claim, action,
suit or proceeding with legal counsel chosen by the indemnifying party.
After an indemnifying party notifies an indemnified party that the
indemnifying party wishes to assume the defense of a claim, action,
suit or proceeding the indemnifying party will not be liable for any
legal or other expenses incurred by the indemnified party in connection
with the defense against the claim, action, suit or proceeding, except
that if, in the opinion of legal counsel to the indemnifying party, one
or more of the indemnified parties should be separately represented in
connection with a claim, action, suit or proceeding the indemnifying
party will pay the fees and expenses of one separate counsel for the
indemnified parties. Each indemnified party, as a condition precedent
to receiving indemnification as provided in Paragraph (a) or (b), will
cooperate in all reasonable respects with the indemnifying party in the
defense of the claim, action, suit or proceeding as to which
indemnification is sought. No indemnifying party will be liable for any
settlement of any claim, action, suit or proceeding effected without
its prior written consent. No indemnifying party will, without the
prior written consent of the indemnified party, effect any settlement
of a pending or threatened claim, action or proceeding with respect
which an indemnified party is, or is informed that it may be, made a
party and for which it would be entitled to indemnification, unless the
settlement includes an unconditional release of the indemnified party
from all liability and claims which are the subject matter of the
pending or threatened action.
(d) CONTRIBUTION. If for any reason the indemnification provided for
in this Agreement is not available to, or is not sufficient to hold
harmless, an indemnified party in respect of any loss, claim, damage,
liability, cost or expense referred to in Paragraph (a) or (b), each
indemnifying party will, in lieu of indemnifying the indemnified party,
contribute to the amount paid or payable by the indemnified party,
contribute to the amount paid or payable by the indemnified party as a
result of the loss, claim, damage, liability, cost or expense (i) in
the proportion which is appropriate to reflect the relative benefits
received by the indemnifying party, on the one hand, and by the
indemnified party, on the other hand, from the sale of stock which is
the subject of the claim, action, suit or proceeding which resulted in
the loss, claim, liability, cost or expense or (ii) if that allocation
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits of the sale of
stock, but also the relative fault of the indemnifying party and the
indemnified party with respect to the statements or omissions which are
the subject of the claim, action, suit or proceeding that resulted in
the loss, claim, damage, liability, cost or expense as well as any
other relevant equitable considerations.
